Tombazos; Chief Executive Officer, Australian Research Council and (Freedom of information)
[2024] AATA 3012
•23 August 2024
Tombazos; Chief Executive Officer, Australian Research Council and (Freedom of information) [2024] AATA 3012 (23 August 2024)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2023/2237
Re:Chief Executive Officer, Australian Research Council
APPLICANT
AndChristis Tombazos
RESPONDENT
Appeal from: Christis Tombazos and Australian Research Council [2023] AICmr 14
DECISION
Tribunal:Deputy President Britten-Jones
Date:23 August 2024
Place:Melbourne
The decision of the Tribunal is to set aside the reviewable decision of Christis Tombazos and Australian Research Council [2023] AICmr 14 and substitute a decision that the information in question is exempt from disclosure under s 45 of the Freedom of Information Act 1982 (Cth).
................................[sgd]........................................
Deputy President Britten-Jones
Catchwords
FREEDOM OF INFORMATION – review of decision of the Freedom of Information Commissioner who had overturned a decision of the Australian Research Council to refuse access to information in a spreadsheet – applicant contends that material in the document in issue is exempt from disclosure under s 45 of the FOI Act – consideration of what is required to found an action for breach of confidence - decision under review set aside
Legislation
Freedom of Information Act 1982 (Cth)
Cases
Ammon v Consolidated Minerals Ltd[No 3] [2007] WASC 232
Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39
Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434Kline v Official Secretary to the Governor-General [2013] HCA 52; (2013) 249 CLR 645, 661
Moorgate Tobacco Co Ltd v Philip Morris Ltd(No. 2) (1984) 156 CLR 414
Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; (2010) 265 ALR 281
Smith Kline & French Laboratories (Aust) Ltd (1990) 22 FCR 73
Western Desert Puntukurnuparna and Aboriginal and Torres Strait Islander Commission [1997] AATA 205
Secondary Materials
Explanatory Memorandum, Freedom of Information Amendment Bill 1991 (Cth)
Heydon J D, Leeming M J and Turner P G, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (5th ed, LexisNexis Butterworths, 2014)
Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued under s 93A of the Freedom of Information Act 1982 (November 2023 and May 2024)Macquarie Dictionary (online at 23 August 2024) ‘found’
REASONS FOR DECISION
Deputy President Britten-Jones
This is an application under the Freedom of Information Act 1982[1] (the FOI Act) by the Chief Executive Officer of the Australian Research Council (the applicant) for review of a decision by the Freedom of Information Commissioner in Christis Tombazos and Australian Research Council [2023] AICmr 14 (the reviewable decision). There is one document in issue being a spreadsheet which contains details of 1064 unsuccessful applications to the Australian Research Council (the ARC) between 2001 and 2017 in the general area of economics. Part of the spreadsheet has been disclosed to the respondent. The reviewable decision was that the spreadsheet was not exempt from disclosure under s 47F and s 47G of the FOI Act on public interest grounds. The applicant contends that the reviewable decision should be set aside and that the undisclosed part of the spreadsheet is exempt from disclosure under ss 45, 47F and 47G of that Act.
[1] All references to legislation are to the Freedom of Information Act 1982 unless otherwise stated
Background
Professor Christina Twomey, Chief Research Officer at the ARC, provided an affidavit dated 13 May 2024 which included the following uncontroversial background:
9. The ARC is an independent body under the Australian Research Council Act 2001 (Cth). Its purpose is to grow knowledge and innovation for the benefit of the Australian community through funding the highest quality research, assessing the quality, engagement and impact of research, and providing advice on research matters.
10. The ARC advises the Government on research matters and administers the National Competitive Grants Program, which delivers around $800 million per year in research funding in Australia.
11. ARC grants are competitively awarded through two funding programs:
11.1 the Discovery Program, which supports individual researchers and research teams; and
11.2 the Linkage Program, which creates links between universities, industry and other partners.12. The Discovery Program delivers benefits to Australia by building Australia's research capacity by supporting excellent, internationally competitive research by individuals and teams, research training and career opportunities for the best Australian and international researchers, international collaboration and undertaking research in Australia's research priority areas.
Discovery Project grants under the Discovery Program
13. The information contained in the document in issue relates to grant applications for Discovery Projects submitted to the ARC between 2001 and 2017, in particular, applications that fall within the Australian and New Zealand Standard Research Classification (ANZSRC) Division 14 Economics or the Australian Standard Research Classification (ASRC) Division 340000 Economics.
14. Discovery Program funding supports research institutions to undertake research in support of economic growth, enhanced quality of life in Australia, job creation and the development of new ideas or knowledge. Within the Discovery Program, there are number of schemes, each of which has its own criteria. At this point in time, the schemes within the Discovery Program include:
14.1. Discovery Projects;
14.2. Discovery Early Career Researcher Award;
14.3. Future Fellowships;
14.4 Australian Laureate Fellowships; and
14.5 Discovery Indigenous.
15. Applications for Discovery Project grants open annually, with successful applications receiving funding from the following year.
Role of Administering Organisations
16. Funding for successful applications is awarded to an Administering Organisation, which is generally an Australian university affiliated with one (or more) of the researchers involved in the research proposal (who are called 'investigators'). Where there are multiple investigators for a proposal, the lead researcher is called the 'lead chief investigator' and the other researchers are called 'chief investigators' or 'partner investigators' (depending on their employment status).
17. 'Administering Organisation' means an eligible organisation (as listed in the Grant Guidelines), which submits an application for grant funds and which is responsible for the administration of the grant under the relevant grant agreement (a legally binding contract between the ARC and the Administering Organisation).
18. The Administering Organisation is responsible for facilitating all stages of a grant application (often through their research office): the ARC does not engage directly with named chief investigators, partner investigators or partner organisations. For this reason, I refer to Administering Organisations as the 'grant applicants' and to affiliated individual researchers as 'investigators' in my affidavit.
19. Administering Organisations complete an application in the ARC's Research Management System (RMS), specifying named investigators, participating organisations and the basic design of the research program.
Assessment of applications for Discovery Project grants
20. Grant applications are assessed by two kinds of assessors: general assessors and detailed assessors.
General assessors from the ARC College of Experts
21. The College of Experts is a panel of appointed members, comprised of Australian research experts from higher education, industry and public sector research organisations. Annexed to my affidavit and marked `CT−1' is a full list of the 318 current College of Experts members, including 38 members with expertise in Economics.
22. The ARC appoints and engages the ARC College of Experts to make a general assessment and rank grant applications for all grants administered under the National Competitive Grants Program. A Selection Advisory Committee (SAC) is formed for each scheme, comprising (in respect of Discovery Projects) disciplinary experts drawn from the College of Experts.
Detailed assessors and Selection Advisory Committee process
23. Grant applications from Administering Organisations are also assessed by detailed assessors, who are academic researchers with expertise in the broad disciplinary field of the application.
24. Detailed assessors assess, on average, between one (1) and three (3) applications in a round, and are only provided with the information relevant to those applications.
25. Detailed assessors are subject to strict confidentiality and conflict of interest obligations (which I describe in further detail later in this affidavit). Detailed assessors are provided with the name of the chief investigators and partner investigators associated with a funding application because research track record and investigator capability are relevant assessment criteria.
26. Administering organisations and investigators do not receive information about the identity of detailed assessors. However, applicants are able to nominate up to three (3) detailed assessors to be excluded from reviewing a particular grant application, in a process known as a Request Not to Assess. This means the ARC will not allocate a grant application to an excluded detailed assessor.
27. Applicants to schemes under the Discovery Programs receive the text of detailed assessor reports on their applications during the course of the assessment process. Chief investigators then have the opportunity to submit a rejoinder to those detailed assessments. Submitting a rejoinder is not essential.
Determining Funding Recommendations
28. Applications for funding are assessed based on the criteria for the scheme for which the application was submitted, and then ranked against the other applications within that scheme. This means that, for example, applications for grants under the Discovery Projects scheme are not assessed or ranked in relation to applications made under the Discovery Early Career Researcher Award scheme.
29. The SAC receives the following information in preparation for its meeting to make funding recommendations: general assessor scores and rankings, detailed assessor scores, and the rejoinder prepared by the chief investigators. Taken together, this information is presented as a ranked list of applications that forms the basis for the SAC discussion to determine funding recommendations.
30. The Grant Guidelines for schemes in the Discovery Program in the years relevant to this request, (2001−17), make clear that the final decision maker on funding approvals was the Minister. The Minister received, through the Chief Executive Officer of the ARC, the funding recommendations made by the SAC.
31. As average scores may change across the years, an application with an assessed score of 80 might be awarded funding in one grant cycle, but might not be awarded funding in another, depending on the strength of other applications in that cycle. Because of this, where applicants are unsuccessful in one round, it is not uncommon for the applicant (and affiliated investigators) to reapply for a grant in the next round for the same scheme.
32. It is not uncommon for an investigator, through their Administering Organisation, to resubmit an unsuccessful application. There is no cap on the number of times an investigator can apply if their linked application was unsuccessful in a previous round and they continue to meet the eligibility criteria.
The document in issue
Professor Twomey deposed in her 13 May 2024 affidavit with respect to the document in issue and the information that has been disclosed by the ARC to the respondent:
33. Geoff Budd, General Counsel of the ARC, has shown to me the document in issue in this proceeding. Mr Budd has informed me that the applicant in this proceeding, Associate Professor Christis Tombazos, is seeking disclosure of the document to him under the Freedom of Information Act 1982 (Cth) (FOI Act), and that this and other documents were created in response to an FOI request sent by his then Honours student, Isaac Cann, in the following terms:
My FOI data request regards both successful and unsuccessful ARC Discovery Project applications during 2001−2017 in the general area of economics that belong to ANZSRC Division 14 or ASRC Division 340000. The specific data that I would like to request is outlined below:
For rejected applications I would like to ask for (a) name(s) of applicant(s), (b) university affiliation(s), (c) the title and abstract of the application, (d) the primary ASRC/ANZSRC category selected by the applicant(s), (e) the amount of funds requested, and (f) the scores given by the external reviewers.
For accepted applications I would like to ask for (a) the requested funds (which) may be different than the awarded funds) and (b) the scores given by the external reviewers.
I understand that the names of the members of the College of Experts up to 2015 are available and sorted by discipline grouping. For 2016−18 the names are available but they are not sorted by discipline grouping. I would be grateful if I could get the members of the College of Experts for 2015−2017 sorted by discipline grouping.34. On 26 July 2023, the ARC provided the Respondent with documents containing the information sought at point 3 above (members of the College of Experts).
35. I am informed by Mr Budd that the ARC no longer opposes release of a document containing the information sought at point 2 above (funded applications).
36. The document in issue is an Excel spreadsheet dated 15 March 2018 that includes details of 1064 unsuccessful Discovery Project research applications.
36.1 Parts of this document have been disclosed including columns F to J.
36.2 The material in issue is confined to columns A to E of the document in Excel.
Unsuccessful application information
37. Annexed to my affidavit and marked `CT−2' is a copy of the version of the document in issue that I am advised was released to Associate Professor Tombazos on 26 July 2023 and is published on the ARC's FOI Disclosure Log. The following fields of information have been released:
37.1. the primary classification type, being the field of research of either the ANZSRC Division 14 Economics, for applications submitted between 31 March 2008 and 1 March 2018, or the ASRC Division 340000 Economics, for applications submitted between 2001 and 30 March 2008 (column F);
37.2. the primary classification code, referring to the sub−fields of research under the ANZSRC or the ASRC, such as '340100 Economic Theory' or '1402 Applied Economics' (column G);
37.3. the amount of funding requested (column H);
37.4. the project funding status (no projects listed in the document in issue were funded under the scheme) (column I); and
37.5. the project score awarded for the application (column J).
38. The first five (5) columns of the document in issue have not been released and contain the following information collected from each of the 1064 research grant applications at the time of application:
38.1. the linked investigator's first name (column A);
38.2. the linked investigator's surname (column B);
38.3. the linked investigator's organisation (column C);
38.4. the title of the research proposal (column D); and
38.5. an abstract or summary of the research proposal (column E).
39. This information was taken from the Discovery Project application forms sent to the ARC for 1064 unsuccessful applications for research grants in the field of economics over the period from 2001 to 2017.
Statutory framework
The High Court considered the legislative framework of the FOI Act in Kline v Official Secretary to the Governor-General: [2]
… The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non-disclosure.
[2] [2013] HCA 52; (2013) 249 CLR 645, 661 at [37].
The general objects of the FOI Act are set out in s 3 as follows:
(1)The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2)The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b) increasing scrutiny, discussion, comment and review of the Government’s activities.
(3)The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource. The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
To promote the objects in s 3(1)(b), s 11(1) provides that:
Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
Section 11A(3) provides that where a person makes a request in accordance with s 15(2) to an agency or Minister for access to a document and pays the required charge, the agency or Minister must give the person access to the document in accordance with the Act ‘subject to this section’.
Section 11A(4) provides that the agency or Minister is not required to give the person access to the document if the document is an exempt document.
The term ‘exempt document’ is defined in s 4(1) to include: ‘a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B)’. Section 31B provides that:
A document is exempt for the purposes of this Part if:
(a) it is an exempt document under Division 2; or
(b) it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5).
If a document is exempt, the agency is not required to provide the document.
Consultation
Sections 27 and 27A of the FOI Act provide for a process of consultation by an agency who considers that a person may wish to make a contention that the document is conditionally exempt under ss 47F or 47G. Upon the commencement of these proceedings, the ARC was required by operation of s 60AA(2) to notify affected third parties. The relevant third parties are the administering organisations (the universities) and the investigators (the researchers).
Responses from the administering organisations (the universities)
In April 2023, soon after the commencement of these proceedings, the ARC wrote to administering organisations (namely, the universities) whose interests might be affected by the decision of the Freedom of Information Commissioner to release the spreadsheet to the respondent. The ARC advised that a request had been made under the FOI Act for access to a range of information held by the ARC about research grant applications and sought a response at to ‘whether your university objects to disclosure of this information, particularly as it relates to unfunded grant application information, including university and researcher names, project descriptions and scores.’
Of the 33 responses from the universities, only one did not object to disclosure.[3]
[3] See, e.g., these responses as part of exhibit 12 at T14, 86 - 264.
After receipt of the responses from the universities, the ARC consulted with the investigators (namely, the researchers) some of whom did not object to disclosure of their information. In or around May 2024, the ARC then referred back to the universities and advised them of the position being taken by these investigators. The ARC advised the universities that it believed that ‘where all the individual chief investigators agree to release of the information about the project, the ARC and research organisations should not stand in the way of releasing the information.’[4] The majority of the universities accepted this approach and no longer objected to the release of the information. This resulted in further information from the spreadsheet being released to the respondent. The University of New South Wales did not change its position and maintained its objection to release.[5] RMIT University also maintained an objection to release except with respect to the name of the chief investigator where they have consented.[6]
Responses from investigators (the researchers)
[4] See also the affidavit of Professor Twomey of 13 May 2024 at [45].
[5] Exhibit 14; exhibit 12 at T14.22, 194 - 195.
[6] Exhibit 13; exhibit 12 at T14.16, 156 - 162.
On 18 October 2023, the ARC wrote to investigators who were affected by the request under the FOI Act and the decision of the Freedom of Information Commissioner to release the information. The standard terms of the email communication included the following:
Notice to affected third party under s 60AA of the FOI Act and request for response
A person sought access under the Freedom of Information Act (FOI Act) to details of your ARC Discovery Project applications during 2001-2017 in the general area of economics which did not receive funding approval. The information requested includes researcher names (including your name), project title, project descriptions and scores.
The ARC refused to provide access to the information. The Freedom of Information Commissioner (FOIC) set aside the ARC’s decision and ordered the ARC to release all of the requested information.
The ARC has sought Administrative Appeals Tribunal (AAT) review of the FOIC’s decision on the basis that we disagree with the decision to release all of the information. Under s 60AA of the FOI Act, the ARC is required to notify affected third parties of the review application.
The ARC proposes to release deidentified project information only – to release the scores but not researcher names, project title or project descriptions.
The ARC seeks your response, by Thursday 26 October 2023 to [email protected], on whether you object to disclosure of researcher names, project titles and project descriptions. If you don’t
object (or if you support release), the AAT is more likely to order that they be released.The respondent contends that this consultation email was seriously flawed. He wrote to the Australian Government Solicitor (‘AGS’) noting that the ‘ARC’s email fails to provide the context of my request for this data and frames the issue in a manner that is highly misleading.’ His request for the emails of the recipients of the ARC’s communications was refused. However, the AGS noted his concerns and said that when researchers requested further information, they were told that the information was being sought by the respondent for research purposes. The respondent raised further concerns with the consultation email in his written statement to the Tribunal dated 1 July 2024. He expanded upon these concerns in his oral testimony to the Tribunal.
Following further communications between the respondent and the AGS, the ARC wrote again to researchers on 4 December 2023 advising that the request under the FOI Act was made by the respondent and providing clarification on the extent of the information requested. The respondent contends that this second consultation email was clearer but still flawed because it advised that any information released would be required to be published on the ARC’s FOI disclosure log. Further concerns were raised by the respondent in his written statement.
The volume of responses to these consultation emails was large due to the number of investigators. Annexed to a supplementary affidavit from Professor Twomey dated 26 July 2024 is a spreadsheet marked CT-S3 summarising responses from investigators about the release of the material on columns A to E of the document in issue. The responses from investigators who advised that they support, or do not object to, disclosure were provided by Professor Twomey in her supplementary affidavit at CT-S4. The responses from investigators who objected to, or did not support, disclosure of some or all of the information about them in columns A to E of the document in issue were provided by Professor Twomey in her supplementary affidavit at CT-S5. Professor Twomey provided an updated summary of consultation responses from investigators in her supplementary affidavit at paragraph 8 as follows:
8.1 investigators related to 729 entries advised the ARC that they consent, or do not object to, the disclosure of their confidential information. These entries are shown in CT−S3 with 'N' in the 'Objection' column and the responses are in CT− S5;
8.2 responses from investigators related to 7 entries provided mixed responses consenting to disclosure of some columns and objecting to others or supporting the objection of the lead chief investigator. These entries are shown in CT−S3 with 'Y/N' in the 'Objection' column and the responses are in CT−S4;
8.3 investigators related to 377 entries advised the ARC that they do not support the disclosure of their confidential information. These entries are shown in CT−S3 with 'Y' in the 'Objection' column and the responses are in CT−S4; and
8.4 for the remaining entries, the ARC did not receive a response from the investigator indicating a position or the ARC received a 'bounce' response indicating that the email was not delivered to them. These entries are highlighted in red in CT−S3 and the column summarising objection responses is blank.
It is apparent that the majority of investigators (for whom grant applications were unsuccessful) did not object to their information being disclosed. This has resulted in the respondent obtaining access to that information in cases where the administering organisation did not object (again which is the majority). Nevertheless, the released information, from the point of view of the respondent, represents an incomplete data set from which to conduct research. Hence, the respondent’s application for the balance of the information not disclosed to him.
The respondent relies on the fact that the majority of investigators and administering organisations have agreed to the release of material relevant to them. This is not an irrelevant factor, but the fact that an investigator (or indeed many) and an administrating organisation may consent to release of their information is not determinative of whether information relevant to another investigator (who opposes or does not consent to release) should be released. The Tribunal is required to consider the information in the spreadsheet that remains in issue and apply the relevant provisions of the FOI Act. Part of that consideration is to take into account any objections made by investigators and to determine what weight should be given to them. The respondent contends that very little weight should be given to those objections to release because of the way that they were consulted.
The respondent also relies upon his own consultation with 692 academic economists. The respondent was not able to confine his consultation to the relevant investigators (for whom grant applications were unsuccessful) because he does not know their names. Despite this handicap, the respondent was able to collect some relevant material by asking these academic economists if they had been a party to an application to the ARC for a Discovery grant which had been rejected and, if so, whether they objected to the ARC providing their relevant information to him. Responses were received from 83 of the 692 surveyed. Out of them, a total of 70 advised that they had been a party to an unsuccessful grant application and only one of them objected to the release of their information.
There was also evidence from numerous academics who expressed strong support for the respondent’s request for data and who considered that the information being requested was not confidential and that it would be in the public interest to disclose it. Oral evidence was given by Professor Peter Dixon who considered that the proposed project of the respondent was very valuable to the Australian community because it would throw light on the extent to which funding decisions in economics are impartial and consistent with the objectives of the ARC. Professor Dixon considered that there was no reputational impact on an academic who was unsuccessful with respect to a grant application. He also considered that there was nothing controversial about the abstract which would be revealed if the information was disclosed to the respondent. He had no issue with scores from the ARC being disclosed. Professor Stephen Keane, who also gave oral evidence, agreed with Professor Dixon and considered that there was no damage to the reputation of an academic if not successful with respect to a grant application.
Section 45 – documents containing material obtained in confidence
Section 45(1) provides:
A document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency or the Commonwealth), for breach of confidence.
Section 45 requires consideration of a hypothetical cause of action. A document will only be exempt if its disclosure would found an action for breach of confidence. In Commonwealth v John Fairfax & Sons Ltd,[7] Mason J said at 51 that in order to found such an action:
… the plaintiff must show, not only that the information is confidential in quality and that it was imparted so as to import an obligation of confidence, but also that there will be “an unauthorized use of that information to the detriment of the party communicating it”
[7] (1980) 147 CLR 39.
Mason J said further that “The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen”[8] and that:
It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism.[9]
[8] Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, 51.
[9] Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, 52.
In Moorgate Tobacco Co Ltd v Philip Morris Ltd (No. 2)[10] (‘Moorgate Tobacco’) at page 438, Deane J, delivering the judgment of the High Court, said with respect to the equitable jurisdiction to grant relief against disclosure of confidential information:
Alternatively it was submitted that the effect of the combination of the confidential nature of the relevant information and the circumstances in which it was communicated was that Philip Morris was under a duty, enforceable in personam by equitable remedies, not to disclose or make use of the confidential information other than for the purposes for which it was communicated to it …
… A general equitable jurisdiction to grant such relief has long been asserted and should, in my view, now be accepted (see Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 50-2). Like most heads of exclusive equitable jurisdiction, its rational basis does not lie in proprietary right. It lies in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained. Relief under the jurisdiction is not available, however, unless it appears that the information in question has “the necessary quality of confidence about it” (per Lord Greene MR, Saltman, supra, at p 215) and that it is significant, not necessarily in the sense of commercially valuable (see Argyle v Argyle [1967] Ch 302 at 329), but in the sense that the preservation of its confidentiality or secrecy is of substantial concern to the plaintiff. That being so, the starting point of the alternative argument must be the identification of the relevant confidential information.
[10] (1984) 156 CLR 414.
The most well-known authority with respect to breach of confidence in the context of the FOI Act is Corrs Pavey Whiting & Byrne v Collector of Customs(Vic)[11] (Corrs Pavey). The dissenting judgment of Gummow J has been accepted as the law with respect to breach of confidence and forms the basis of the FOI Guidelines[12] at [5.159] which set out the five criteria which must be satisfied to found an action for breach of confidence. In the Corrs Pavey decision, the obligation of confidence did not arise from a contract but rather from the circumstances of the provision of information to the Australian Customs Service which gave rise to an equitable duty of confidence. Gummow J confirmed that it was not a case of breach of contract and set out the four (and possibly five) criteria that must be satisfied to make out a case for protection of confidential information in equity at page 443:
As I have indicated the case is to be approached in terms of the general law, not as a case of confidence protected by contract, but as one, if anything, of confidence protected in equity. It is now settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question, and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge), (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence, and (iv) there is actual or threatened misuse of that information: … . It may also be necessary, as Megarry J thought probably was the case (Coco v Clark (AN) (Engineers) Ltd [1969] RPC 41 at 48), and as Mason J (as he then was) accepted in the Fairfax decision was the case (at least for confidences reposed within government), that unauthorised use would be to the detriment of the plaintiff. This last aspect may be put to one side in the present case, because the use to which Syntex would put the information would plainly be detrimental to Alphapharm.
[11] [1987] FCA 266; (1987) 14 FCR 434.
[12] The Office of the Australian Information Commissioner has issued Guidelines under s 93A which requires the Tribunal to have regard to the Guidelines in making its decision (FOI Guidelines). Further versions of Part 5 and Part 6 of the FOI Guidelines were issued in May 2024 but the relevant paragraphs are not materially different to the versions referred to by the parties and to which I refer in these reasons.
Following on from the dissent of Gummow J in Corrs Pavey, s 45 was amended to make clear that it provides exemption where, and only where, the person who provided the confidential information would be able to prevent disclosure under the general law relating to breach of confidence.[13]
[13] Explanatory Memorandum, Freedom of Information Amendment Bill 1991 (Cth).
With respect to a breach of confidence, the FOI Guidelines say:
5.158. A breach of confidence is the failure of a recipient to keep confidential, information which has been communicated in circumstances giving rise to an obligation of confidence. The FOI Act expressly preserves confidentiality where that confidentiality would be actionable at common law or in equity.
5.159. To found an action for breach of confidence (which means s 45 would apply), the following five criteria must be satisfied in relation to the information:
• it must be specifically identified
• it must have the necessary quality of confidentiality
• it must have been communicated and received on the basis of a mutual understanding of confidence
• it must have been disclosed or threatened to be disclosed, without authority
• unauthorised disclosure of the information has or will cause detriment.
Under s 61(1)(a) of the FOI Act the applicant has the onus of establishing that the decision under review was not justified or that the Tribunal should give a decision adverse to the respondent. If the evidence before the Tribunal is not sufficient to found an action for breach of confidence then the applicant will not have satisfied the onus. That does not mean that the applicant would have to prove that the hypothetical cause of action will be successful. Section 45 only requires evidence to support a finding that the disclosure of the document would found an action for breach of confidence. In Western Desert Puntukurnuparna and Aboriginal and Torres Strait Islander Commission,[14] the Tribunal considered what it means to found an action for breach of confidence and concluded at [62] with respect to s 45 as follows:
The terms of the section do not require an agency to consider the likelihood that an action will be commenced against them, the merits of the action, defences to the action or the outcome of the action. Such requirements would place far too onerous a burden on an agency. The section only requires the agency to consider whether disclosure would found an action for breach of confidence.
[14] [1997] AATA 205.
The effect of s 45 of the FOI Act is to import the general law action for breach of confidence and thereby establish a test for an exempt document if its disclosure would found such a cause of action.
In the case before the Tribunal, the hypothetical action would be a claim in equity against the ARC (as the recipient of allegedly confidential information) by an investigator or an administering organisation (seeking to protect their allegedly confidential information).
A complicating factor in this case is that the document contains allegedly confidential information from multiple sources each of whom would have a potential cause of action to protect their information. A question arises as to whether it is necessary to consider individually and separately each of the investigators and administrating organisations to determine whether disclosure of the particular row in the document containing their information would found an action for breach of confidence. That would be an excessively onerous task, but the respondent submits that such an investigation is required and further that the applicant has the onus of satisfying the Tribunal that with respect to each potential cause of action. I have decided that the evidence permits a group approach and does not require a line by line analysis because of the similar nature of the information provided and the similar circumstances in which it was provided.
I turn now to the five criteria.
Can the information be identified with specificity?
The information in question from each of the 1064 research grant applications is:
a.The linked investigator’s first name (column A);
b.The linked investigator’s surname (column B);
c.The linked investigator’s organisation (column C);
d.The title of the research proposal (column D); and
e.An abstract or summary of the research proposal (column E).
There is no dispute that the information can be identified with specificity.
Does the information have the necessary quality of confidence?
The information is the title and summary of the academic research for which a grant is sought together with the name of the person who intends to carry out the research and the university with the rights to the research. Contrary to the evidence given by and on behalf of the respondent, I consider that there are numerous indicators that the information has the necessary quality of confidence. First, the information relates to proposed academic research of an innovative and novel nature which was at an early stage of development, and which had not yet been published. Second, the information is provided as part of a competitive grants program in which researchers compete with other researchers for access to a limited number of grants. Third, the information is of a sensitive nature because it would disclose not only that a named person has been party to an unsuccessful application for a grant, but the score received, both of which have the potential to cause professional embarrassment and damage to a person’s reputation. Fourth, one can infer from the objections to disclosure by investigators (for whom grant applications were unsuccessful) that their information is not in the public domain. Fifth, the information was treated as confidential by the ARC. Sixth, the information was given to and received by the ARC in confidence.
There is supporting evidence from a significant number of investigators (for whom grant applications were unsuccessful) that the information was confidential. For example:
a. I believe that my grant details are private and I strongly object to the release of this information on privacy grounds.[15] This is my personal information and I have the right to release it or not to a third party …[16]
b. The project score for my grant application is very private information. … Some of the projects have commercially sensitive content.[17]
c. I object to disclosing the information on the project to the public. At the moment, the research is still going on and many parts of the research ideas are contained in the application.[18]
d. The ideas within these project applications are original …[19]
e. The information I provide in ARC application is specifically directed to the Discovery Project grant scheme and often contains ideas that are original and novel.[20]
[15] Supplementary affidavit of Professor Twomey 26 July 2024 at annexure CT-S5, 301.
[16] Ibid 592.
[17] Ibid 320.
[18] Ibid121.
[19] Ibid 148.
[20] Ibid 138.
I do not consider there to be any ambiguity or suggestion of having been misled in the above responses.
Has the information been communicated and received on a mutual understanding of confidence?
Professor Twomey gave evidence that the ARC policies, procedures and practices reflect a longstanding understanding of confidentiality. Relevantly, she deposed:
47. The ARC has published its 'Conflict of Interest and Confidentiality Policy'
(Confidentiality Policy) on its website, including previous versions of the
Confidentiality Policy as updated from 2009. In preparing this affidavit, I have read the versions of the Confidentiality Policy published in 2009, 2013, 2014 and 2017. These versions of the Confidentiality Policy are publicly available on the ARC's website, and extracts are annexed to my affidavit and marked `CT−6'.48. In 2009, the Confidentiality Policy set out the confidentiality obligations for the ARC and for individuals involved with the ARC's business, such as assessors and
reviewers. From 2017, the scope of the Confidentiality Policy was expanded to
encompass funding applicants and their affiliated investigators.49. Under the 2009 and 2013 Confidentiality Policies, 'funding [p]roposals or information provided by researchers and others.., are given and received in confidence'. Information and proposals are required to be 'handled and treated as confidential material and must be used only for the purposes of ARC business', and 'must only be ... disclosed for the purposes of ARC business', to ensure compliance with ethical standards.
50. From 2014, the Confidentiality Policy was updated to confirm that Iiinformation
contained in application.., processes is given and received in confidence'. The 2014 and 2017 Confidentiality Policies require that information be 'handled and treated' confidentially and used only for ARC business purposes, in similar terms to the 2009 and 2013 Confidentiality Policies.51. In addition, the ARC includes information and guidance in other documents related to the Discovery Program or to the ARC's administration generally, which is consistent with the position indicated by the Confidentiality Policies.
51.1. For example, the 2003 Assessor Handbook for the Discovery and Linkage Programs states that ‘[t]he ARC receives applications in confidence' and that assessors 'should not discuss an application with any other person without first receiving written permission from the ARC'.
51.2. Similarly, the 2005 ARC Administration Handbook states that ‘[i]nformation contained in applications is regarded as in confidence unless otherwise stated and will be received and treated as in confidence by the ARC, institutions and assessors.'
51.3. Extracts from these documents are annexed to my affidavit and marked ‘CT−7'.
52. On the basis of the Confidentiality Policies and other guidance documents, and the consultation responses from applicants, I believe that the information provided by investigators and Administering Organisations during the funding application process was submitted to the ARC on the expectation that the ARC would treat the information as confidential.
53. The Confidentiality Policy does not set out temporal limitations on the ARC's
confidentiality obligations, in terms of the period of time for which the obligations will
continue. It is my understanding that the ARC's confidentiality obligations are ongoing, in adherence with the Confidentiality Policy. Therefore, I consider that the information in columns A — E of the document in issue that was derived from the grant applications is confidential, and the ARC continues to treat that information as confidential.The documentary evidence supporting a mutual understanding of confidence dates back to 2003 but I am prepared to accept that the understanding existed from at least 1 July 2001, which was the commencement date of the Australian Research Council Act. It is inherent in any competitive grants program that the applications are received in confidence.
I accept the evidence in support of the satisfaction of this criterion from Professor Twomey who deposed that:
the information provided by investigators and Administering Organisations … was submitted to the ARC on the expectation that the ARC would treat the information as confidential.
Professor’s Twomey’s evidence is supported by the express reference to confidentiality obligations in the ARC Guidelines from February 2009 as follows:
The funding Proposals or information provided by applicants and others, and assessments provided by assessors or reviewers are given and received in confidence. The Proposals or information must be handled and treated as confidential material and must be used only for the purposes of ARC business. In order to preserve confidentiality, individuals should not discuss ARC business with any other parties at any stage, unless specifically authorised to do so by the ARC.
Furthermore, in order to comply with ethical standards, material contained in Proposals or information must only be used or disclosed for the purposes of ARC business. It is unethical and potentially unlawful for individuals to use for other purposes any intellectual property contained in Proposals or information provided to them by the ARC. To protect confidentiality, individuals must destroy all Proposals or information provided by the ARC once the purposes for which it was provided have been fulfilled. Further, there is evidence from a significant number of grant applicants that there was a mutual understanding of confidence with respect to the information in their grant applications. For example:
a. Information about grant applications and the context of applications is confidential until the time any grant application is successful. The ARC makes this clear under 6.22 of its Conflict of Interest and Confidentiality Policy. To release the names of applicants and project titles would breach this expectation of confidentiality.[21]
b. The information requested is provided for the sole scope of ARC project submissions. The release of this information is a breach of personal privacy.[22] Yes I object to it being released. It was provided in confidence …[23]
c. These applications were made confidentially.[24]
d. the disclosure of this information would undermine applicants’ confidence in the confidentiality of the ARC grants application process.[25]
[21] Ibid 274.
[22] Ibid 138.
[23] Ibid 291.
[24] Ibid 399.
[25] Ibid 274.
I do not consider there to be any ambiguity or suggestion of having been misled in the above responses.
Is disclosure threatened without authority?
The investigators (for whom grant applications were unsuccessful), whose information has been redacted in the spreadsheet, are those who have not given authority for their information to be disclosed. Any disclosure would be without their authority and hence this criterion is established.
Will disclosure cause detriment?
I note that there is some doubt on the authorities as to whether detriment is a necessary element to establish a breach of confidence. For example, in Ammon v Consolidated Minerals Ltd[No 3],[26] Martin CJ observed:
The third element of the cause of action identified by Megarry J in Coco (at 47), was described by him as ‘an unauthorised use of the information to the detriment of the party communicating it’. In Lac Minerals Ltd v International Corona Resources Ltd [1989] 2 SCR 574; (1989) 16 IPR 27, this third element was referred to by LA Forest J as the element of misuse of the information. That terminology avoids specific reference to the element of detriment – an element which later cases strongly suggest is not an essential component of the equitable claim for breach of confidence – see for example Attorney-General v Observer Ltd (1990) 1 AC 109; National Roads and Motorists’ Association Ltd v Geeson [2001] NSWCA 343; (2001) 40 ACSR 1 at [58]; N P Generations Pty Ltd v Feneley [2001] SASC 185; (2001) 80 SASR 151 at [21]. Although the matter is not entirely free from doubt, the better view seems to be that detriment is not an essential element of the cause of action.
[26] [2007] WASC 232, 310.
The learned authors of Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (5th ed), [27] proposed that it is safer to apply the statement of principle by the Full Federal Court in Optus Networks Pty Ltd v Telstra Corporation Ltd,[28] in which the Court adopted a previous formulation by Gummow J[29] and said that there are four elements to a claim for breach of confidence in equity, not including detriment.
[27] [42]-[100].
[28] [2010] FCAFC 21; (2010) 265 ALR 281, 290 [39].
[29] Smith Kline & French Laboratories (Aust) Ltd (1990) 22 FCR 73, 87.
Despite this uncertainty, I will approach the matter by reference to the FOI Guidelines which provides that all five criteria must be satisfied in order to found an action for breach of confidence. The applicant and the respondent agree that this is the correct approach. The Guidelines say:
5.171. The fifth element for a breach of confidence action is that unauthorised disclosure of the information has, or will, cause detriment to the person who provided the confidential information. Detriment takes many forms, such as threat to health or safety, financial loss, embarrassment, exposure to ridicule or public criticism. The last three are applicable only to private persons and entities, but not to government.
5.172. The AAT has applied this element in numerous cases, but whether it must be established is uncertain. The uncertainty arises because of an argument that an equitable breach of confidence operates upon the conscience (to respect the confidence) and not on the basis of damage caused. Despite the uncertainty, it would be prudent to assume that establishing detriment is necessary.
The FOI Guidelines are consistent with the statement from Mason J in Commonwealth v John Fairfax & Sons Ltd[30] that it may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. Upon there being a breach of the expected confidentiality by the unauthorised disclosure of information provided to the ARC, the unsuccessful grant applicant will suffer detriment because his unsuccessful grant application will be exposed to public discussion and criticism. Even if disclosure is limited to the respondent for his intended academic research there is detriment because the expectation of confidentiality has been breached.
[30] (1980) 147 CLR 39.
There is supporting evidence from a significant number of investigators (for whom grant applications were unsuccessful) that the disclosure of their grant application would cause detriment. For example:
a.the [release of] details related to unsuccessful ARC DP applications is a potential damage to my academic reputation and violation of basic principles of confidentiality.[31]
b.I am objecting to the release of our application details given that my team might be revisiting the research idea and potentially re-apply for future grant(s).[32]
c.Publishing unsuccessful outcomes, could significantly impact my research track record… This is especially relevant when the information is released without context. Any disclosure of identity or details of unsuccessful applications could lead to a negative perception of my capability. Such negative perceptions could lead to the loss of existing or future opportunities for collaborative projects and grants… due to the crucial role that a track record of success plays in the assessment processes of many funding schemes.[33]
d.I would be hurt if my professional colleagues or research students were informed of the details of a low score for one of my ARC grant application – the psychological damage would be high.[34]
[31] Supplementary affidavit of Professor Twomey 26 July 2024 at annexure CT-S5, 138.
[32] Ibid 217.
[33] Ibid.
[34] Ibid 320.
I do not consider there to be any ambiguity or suggestion of having been misled in the above responses.
There is also supporting evidence from two universities who raise a detriment from release in the nature of an adverse impact on their business interests. RMIT University expresses a concern that if project details, provided in confidence to the ARC, are released then research organisations may be reluctant to partner with them on important research projects in the future.[35]
[35] Exhibit 13, Letter from Professor Drummond of RMIT University 10 June 2024.
The respondent has given evidence that if the relevant information is released to him, he will treat it confidentially and not disclose names and particulars of scores. His research will report summary statistics only. He is willing to enter into a confidentiality deed with the ARC in order to formalise his pledge of confidentiality.[36] I have no reason to doubt the evidence of the respondent and his intention to protect the confidential information that would be released to him. The respondent contends that disclosure to the respondent will not cause detriment because he will protect the information from further disclosure in accordance with his pledge.
[36] Statement of Professor Tombazos, 1July 2024, [23] - [26].
This raises an interesting but difficult issue as to the extent one needs to consider the elements of an action for breach of confidence on a s 45 claim. The hypothetical cause of action that I am required to consider would be brought by an unsuccessful grant applicant or an administering organisation against the ARC for breach of confidence. The plaintiff in such an action would allege a breach of confidence by the ARC if it disclosed the information to the respondent. I am prepared to include the evidence of the respondent as part of the factual scenario in the hypothetical cause of action that I must consider. However, s 45 does not require me to consider the merits of any defence that may be available or to resolve potential factual disputes that may arise in the hypothetical cause of action. The difficulty with the respondent’s contention that there is no detriment from disclosure is illustrated by the responses of unsuccessful grant applicants who, after being informed of the identity of the respondent, said:
a.The person who made the request is within an Economics Department and is thus a competitor for these funding rounds with those who he is seeking information about. I believe that would give him a competitive advantage to know the nature of the projects, the keywords, descriptions and the researchers and their affiliations.[37]
b.I oppose release, because our project is still ongoing and we don’t know how others will use information on my application. I don’t know the person who is requesting the access and cannot be sure he won’t work on the same ideas proposed in the application.[38]
c.I oppose release. I do not know Professor Tombazos and I do not see any reason why he should have access to my application.[39]
d.I oppose release of any information relating to my ARC grants. I have already provided reasons for this. They include: potential for AP Tombazos to use this information in his own grants, lack of clarity on what the purpose of the FOI request and the benefits from receiving this information, potential to create conflict in the research community.[40]
e.Sharing this information with A/Prof Tombazos is equivalent to making this information public (for all practical reasons!).[41]
[37] Supplementary affidavit of Professor Twomey 26 July 2024 at annexure CT-S5, 374.
[38] Ibid 485.
[39] Ibid 519.
[40] Ibid 524.
[41] Ibid 592.
As stated above, it is only necessary for the Tribunal to be satisfied that disclosure of the information would found an action for breach of confidence. The Macquarie dictionary says that found means ‘to set up or establish on a firm basis’ or ‘to afford a basis or ground for’. The concerns raised by investigators (for whom grant applications were unsuccessful) and the universities provide sufficient grounds for a finding of detriment and, consequently, an action for breach of confidence.
Conclusion
I believe that the investigators (for whom grant applications were unsuccessful) and administering organisations who maintain their objection to disclosure of the information in question would be able to prevent disclosure under the general law relating to breach of confidence. I conclude that the information in question in the spreadsheet is exempt from disclosure under s 45 of the FOI Act. The applicant has established that the decision under review was not justified and that the Tribunal should give a decision adverse to the respondent. Having found the material exempt from disclosure under s 45 of the FOI Act, there is no need for me to consider the further grounds under ss 47F and 47G.
The decision of the Tribunal is to set aside the reviewable decision and substitute a decision that the information in question is exempt from disclosure under s 45 of the FOI Act.
59. I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones
................................[sgd]........................................
Associate
Dated: 23 August 2024
Date(s) of hearing:
5-6 August 2024
Counsel for the Applicant:
Mr Trent Glover
Solicitors for the Applicant
Australian Government Solicitor
Counsel for the Respondent:
Ms Kylie McInnes
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